People v. Giroux — 36 N.Y. Sup. Ct. 248

Majority

p. 248

THE PEOPLE OF THE STATE OF NEW YORK, Appellants, v. HUBERT GIROUX, President, etc., and THE LAFAYETTE FIRE INSURANCE COMPANY, Respondents.

Headnote

Additional allowance — ca/nnot he granted in an action to remove an officer of a corporation for misconduct — Code of Civil Procedure, sec. 3358.

No additional allowances can be granted under section 3353 of the Code of Civil Procedure in an action brought to procure the suspension and removal from office of the president of a fire insurance company, upon the ground of his misconduct, as the subject-matter involved therein has no pecuniary value.

Appeal from an order made at a Special Term granting an additional allowance.

William G. Cooke, for the appellants.

Cha/wncey Schaffer, for the respondents.

This action is for the suspension and removal of the defendant from the office of president of a fire insurance company on allegations of misconduct. The cause was tried at Special Term, and decided in favor of the defendant, who was awarded an additional allowance of $500. From this order granting the allowance we have this appeal. This order must stand under the provisions of section 3253 of the Code of Civil Procedure, or it must fall. Under that section an allowance can be made in certain specified kinds of actions, or in a difficult and extraordinary case where a defense has been interposed in any actions, of a sum not exceeding five per centum on the sum recovered or claimed, or the value of the subject-matter involved. In this action nothing was recovered or claimed, and no subject-matter was involved having any pecuniary value. The subject involved was the conduct of the defendant. There is, therefore, no basis for an additional allowance. It is true there was an allegation that certain amounts of money had been lost by the mismanagement of the defendant, but the plaintiff claimed no interest in it, and the action was not for its recovery.

The order should be reversed, with costs and disbursements.

Cullen, J"., concurred; Barnard, P. J., not sitting.

Order granting allowance reversed, with costs and disbursements.